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State v. Wehner

Court of Appeals of Ohio, Second District, Montgomery

May 12, 2017

STATE OF OHIO Plaintiff-Appellee
v.
MARSHALL WEHNER Defendant-Appellant

         Criminal Appeal from Common Pleas Court No. 2016-CR-00133

          MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Attorney for Plaintiff-Appellee

          SARAH E. MICHEL, Atty. Reg. No. 0087773, Attorney for Defendant-Appellant

          OPINION

          HALL, P.J.

         {¶ 1} Marshall Wehner appeals from his conviction and sentence following a no-contest plea to one count of heroin possession, a fifth-degree felony.

         {¶ 2} In his sole assignment of error, Wehner contends the trial court erred in overruling his motion to suppress a heroin capsule found in his sweatshirt pocket during a search conducted by a Miamisburg police officer. Wehner argues that the officer unlawfully seized and searched him without probable cause or reasonable suspicion and without his consent. Therefore, he maintains that the heroin capsule should have been suppressed. For its part, the State asserts that Wehner voluntarily consented to the officer's search of his pocket and that the trial court properly overruled the suppression motion on that basis.

         {¶ 3} The only witnesses at the suppression hearing were Wehner and Kevin Current, the officer involved. Current testified that he saw Wehner walking through an alley while on patrol on October 1, 2015. Current knew Wehner from prior encounters. He previously had engaged in numerous conversations with Wehner, who on several other occasions had allowed the officer to search him for drugs.

         {¶ 4} On the day in question, Current had a suspicion, based on information received from other officers, that Wehner may have visited someone on the front porch of a drug house. As a result, he approached Wehner on foot and "started talking with him." Current first said something like "Hey, Marshall, " and "normal conversation" followed. Current testified that he did not block Wehner's path, adivse him he was not free to leave, or do anything to prevent him from leaving. Current denied Wehner ever saying that he did not want to talk or asking to leave. During their conversation, Wehner denied being in possession of anything illegal. Current responded by stating that he believed Wehner had purchased heroin and asking for permission to search Wehner. According to Current, Wehner consented to the officer "check[ing] him." Current testified that Wehner then "started to reach into his pockets to show * * * what was in his pockets, basically." At that point, Current "told him keep his hands out of his pockets and I'll check for him." Current denied grabbing Wehner's arm or doing anything other than telling Wehner not to "reach in." Current then reached into Wehner's sweatshirt pocket and retrieved a heroin capsule.

         {¶ 5} In his testimony, Wehner admitted knowing Current and having had several prior encounters with the officer. Wehner also admitted having given Current permission to search him on prior occasions. With regard to the day in question, however, Wehner stated that he did not feel "free to leave" when Current approached him. He claimed he was "afraid" and was "wanting to be free to go." He believed that he would be "grabbed" if he tried to walk away. Wehner also testified that he denied Current's request to search him. According to Wehner, he also attempted to show the officer that he did not have "any weapons or anything." Wehner testified that Current responded by grabbing his arm and telling him not to move or to reach into his pockets. At that point, the officer reached into Wehner's sweatshirt pocket himself and found the heroin capsule. Wehner insisted that he did not give Current permission to do so.

         {¶ 6} After hearing the testimony of Current and Wehner, the trial court made the following factual findings on the disputed issue of consent to search:

On the day in question, Officer Current asked the Defendant if he was in possession of any drugs. The Defendant responded that he was not in possession of any drugs. Officer Current then asked him if he could check. Defendant then consented to the officer checking. At that time the Defendant started to put his hands into his center sweatshirt pocket -Officer Current stopped him and told him he would check. Officer Current then went into the Defendant's center sweatshirt pocket and found the capsule that forms the basis of the charges herein. The Defendant was not in custody or arrested and permitted to leave.
The Defendant admitted that he had been searched previously; that the previous searches were consensual and that during the previous consensual searches, the Officer went into and searched his pockets.

(Doc. #18 at 1-2).

         {¶ 7} Based on its factual findings, the trial ...


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